1. Although petitioner's delay in bringing this action until well into the candidate filing period indicates a lack of diligence in presenting his claim, the court will not apply laches to bar consideration of the question of when an appointment occurs for purposes of Article VI, section 8, of the Minnesota Constitution.
2. Under Article VI, section 8, of the Minnesota Constitution, an appointment is made on its effective date so that a successor shall be elected at the next general election occurring more than one year after the effective date.
The opinion of the court was delivered by: Page, Justice.
Concurring in part, dissenting in part, Anderson, Paul, J. Took no part, Meyer, J.
Heard, considered, and decided by the court en banc.
Petitioner John A. Winters seeks relief under Minn. Stat. § 204B.44 (2000) from an alleged wrongful act by the secretary of state for her failure to place Winters' name on the ballot for the 2002 election as a candidate for the judicial seat currently held by the Honorable Donna Dixon of the Ninth Judicial District. It is the secretary of state's position that the seat is not up for election until the 2004 general election. This opinion confirms the order filed on July 25, 2002, denying the petition.
On October 24, 2001, Governor Jesse Ventura filed with the secretary of state a "Notice of Appointment" of Donna Dixon to fill a judicial vacancy in the Ninth Judicial District. The notice of appointment states that the governor has "appointed and commissioned" Judge Dixon to hold the office of judge of district court effective November 9, 2001, with the term to continue until January 3, 2005. Judge Dixon was sworn in and took office on November 9, 2001. Consistent with the length of the term indicated on the notice of appointment, the secretary of state did not designate Judge Dixon's seat as a judicial seat subject to election in the 2002 election scheduled to take place on November 5, 2002.
Winters claims that he has had a "general interest for several months in possibly running" against Judge Dixon, but did not know whether she was up for election in 2002. Winters claims that, since May 2002, he has checked the secretary of state's website and telephoned that office to determine whether the seat was up for election, without receiving a clear answer. These efforts intensified in late June and early July, in anticipation of the July 2-16, 2002, candidate filing period. Winters was informed by a court administrator on July 1, 2002, that Judge Dixon's seat was not subject to election in 2002. Shortly thereafter he received a copy of the notice of appointment of Judge Dixon, and thought there was something "technically wrong" with the appointment, but decided not to run against Judge Dixon in any event. However, after reading about this court's decision in another ballot contest, he reconsidered his decision not to run. On July 10, 2002, by petition for writ of mandamus filed as an original action in this court, Winters sought an order requiring the secretary of state to hold an election for Judge Dixon's seat. We dismissed the petition for lack of jurisdiction.*fn1 On July 17, 2002, Winters filed the instant petition for relief under section 204B.44. We ordered expedited briefing, specifically ordering the parties to brief whether the relief requested in the petition should be barred by laches.
The issue presented in Winters' section 204B.44 petition involves interpretation of Article VI, section 8, of the Minnesota Constitution, which provides:
Whenever there is a vacancy in the office of judge the governor shall appoint in the manner provided by law a qualified person to fill the vacancy until a successor is elected and qualified. The successor shall be elected for a six year term at the next general election occurring more than one year after the appointment.
Specifically, we must determine when Judge Dixon's appointment was made-on October 24, 2001, when the governor filed the notice of appointment, or on November 9, 2001, the effective date of the appointment pursuant to the governor's notice. The answer to that question determines whether the successor is to be elected this year, the first general election more than one year after October 24, 2001, but less than one year after November 9, 2001, or in 2004, the first general election occurring more than one year after November 9, 2001. The answer to that question, therefore, also determines whether the secretary of state has committed or will commit a "wrongful act, omission, or error" by not placing Judge Dixon's seat on the ballot for the 2002 election. See Minn. Stat. § 204B.44(d) (2000).
Winters claims that, under Article VI, section 8, of the Minnesota Constitution, Judge Dixon's judicial seat should be up for election in 2002 because more than one year has elapsed since her appointment. Acknowledging that the constitution does not give much guidance on the issue of when the one-year period begins to run and that the legislature has passed no statute clarifying the operative act establishing when an appointment is made, Winters relies on the common meaning of the word "appointment" and argues that the common meaning "does not allow for some future effective date of the appointment." Winters claims that there is a need for a definitive act to constitute an appointment, and the date the governor's notice of appointment is filed with the secretary of state should constitute that act. He argues that to hold otherwise allows the governor to defeat judicial elections, the primary method of selection of judges mandated by the constitution.
In contrast, the secretary of state claims that Judge Dixon's appointment did not occur until November 9, 2001, and therefore under the constitution a successor is to be elected at the first general election occurring more than one year thereafter, which in this case would be the 2004 general election. The secretary of state claims that the opposite result would conflict with the constitutional purpose of allowing an ...